F I L E D

PUBLISH

United States Court of Appeals

Tenth Circuit

SEP 5 2001

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

ADAM POOLE,
Plaintiff-Appellant,
No. 00-2215

v.
COUNTY OF OTERO; JOHNNY
LEE, Sheriff; TOM SKIPWORTH,
Deputy,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-99-741-LH)
Submitted on the briefs:
Michael W. Lilley and Kyle W. Gesswein, Lilley Law Office, Las Cruces,
New Mexico, for Plaintiff-Appellant.
Leonard J. Piazza, Sandenaw, Carrillo & Piazza, P.C., Las Cruces, New Mexico,
for Defendants-Appellees.
Before SEYMOUR and McKAY , Circuit Judges, and
Judge.
McKAY , Circuit Judge.

BRORBY , Senior Circuit

Adam Poole appeals from the district courts ruling dismissing his civil
rights complaint pursuant to Fed. R. App. P. 12(b)(6) for failure to state a claim.
We have jurisdiction over this appeal by virtue of 28 U.S.C. 1291, and we
review the district courts dismissal de novo

. 1 Morse v. Regents of the Univ. of

Colo. , 154 F.3d 1124, 1126 (10th Cir. 1998)

. Dismissal under Rule 12(b)(6) is

a harsh remedy which must be cautiously studied, not only to effectuate the spirit
of the liberal rules of pleading but also to protect the interests of justice,

id.

at 1127, and is inappropriate unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claims which would entitle him to
relief. Id. (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)).
At the time of the district courts disposition of this case, Mr. Poole had
requested leave to amend his complaint. Although the district court apparently
based its dismissal on review of the sufficiency of his original complaint,
see Aplt. App. at 155, it also concluded that the proposed amended complaint
likewise failed to state a claim and that, therefore, allowing amendment would be
futile. Id. We agree with Mr. Poole that the relevant inquiry on appeal is whether
his proposed amended complaint states a claim for relief.

See Appellants Br. at

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

-2-

8. Accordingly, our review is limited to the allegations in

complaint,

his unfiled amended

accepting the factual allegations as true and resolving all reasonable

inferences in hi s favor. Morse , 154 F.3d at 1126-27.

On July 4, 1997, individual defendants, other Otero County officers, and
Alamogordo police officers pursued Mr. Poole while he was speeding on a
motorcycle through Alamogordo, New Mexico into the desert, ultimately resulting
in serious injuries to Mr. Poole. The next day, officers and employees of both the
Alamogordo Police Department and the Otero County Sheriffs Department

Defendants contend on appeal that this court may consider facts outside of
the complaint because [a]ppellees converted their motion to dismiss, with respect
to their qualified immunity analysis, into a motion governed by the
summary
judgment standard. Appellees Br. at 1. Defendants attached an affidavit to
their motion to dismiss which they argue is admissible evidence at this stage.
See
scretion to
id. at 6, 17-18. We reject this argument. The district court has the di
decide whether to convert a motion to dismiss into one for summary judgment
.
See Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ.
, 232 F.3d
1334, 1341 (10th Cir. 2000) (rejecting argument that court abused its discretion in
failing to convert a Rule 12(b)(6) motion into a
summary judgment motion where
the parties attached materials beyond the pleadings to their motions). Further, in
its summary written order following the hearing, the district court expressly stated
that it did not consider the affidavit attached to defendants motion to dismiss.
See Aplt. App. at 156. Although defendants correctly note that this court can
affirm the district courts ruling on alternate grounds for which there is a record
sufficient to permit conclusions of law,
United States v. Sandoval , 29 F.3d 537,
542 n.6 (10th Cir. 1994), we will not do so here, where 1) the district court
declined to consider materials outside the pleadings; 2) Mr. Poole objected to any
conversion to a summary judgment motion because discovery had been stayed as a
result of defendants qualified immunity defense,
see Aplt. App. at 195; and 3)
defendants urge us to rely on factual evidence not properly before the district
court on a motion to dismiss pursuant to Rule 12(b)(6).
2

-3-

investigated the scene where the injuries took place, and Alamogordo police
officers took statements from witnesses. That same day, an Alamogordo police
officer issued Mr. Poole a traffic ticket for careless driving. Almost three weeks
later, Mr. Pooles counsel wrote letters to defendant Otero County, defendant
Sheriff Lee, and the district attorney, requesting that they preserve all evidence
of the incident. Within one week of that time, the district attorneys office
withdrew the careless driving charge and, four days later, filed a complaint
charging Mr. Poole with six criminal counts of reckless driving and resisting
and evading arrest.
Mr. Pooles complaint, seeking damages under 42 U.S.C. 1983 and
attorneys fees under 42 U.S.C. 1988, asserted 1) various claims under the
Fourth and Fourteenth Amendments for recklessness and deliberate indifference
to his rights, including claims of failure to implement appropriate procedures,
failure to train and supervise, excessive force, seizure, and violation of
substantive due process; 2) claims under the First Amendment for retaliatory,
vindictive, and selective prosecution in violation of his right of access to the
courts, and 3) various state-based tort claims grounded in allegations of
negligence, recklessness, failure to train and supervise, and respondeat superior.
Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). After briefing,
the district court held a hearing on the motion during which the court ruled from
-4-

the bench, rejecting Mr. Pooles constitutional claims and declining to exercise
pendent jurisdiction over his remaining state claims.

See Aplt. App. at 196-99.

On appeal, Mr. Poole has limited his arguments to his First Amendment claims
and his pendent state claims. We conclude that he has waived all other issues.
See State Farm Fire & Cas. Co. v. Mhoon

, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

Mr. Poole alleged that defendant s selectively prosecuted him, noting that
James Sullivan, the other motorcyclist who had been speeding through
Alamogordo with him, was not charged.

See Aplt. App. at 143. The district court

ruled that Mr. Poole had failed to allege an adequate factual basis to establish
a claim of selective prosecution.

See id. at 198. We agree.

defendant
In order to prevail on a claim of selective prosecution, a
must show that he has been singled out for prosecution while others
similarly situated generally have not been proceeded against for the
type of conduct forming the basis of the charge against him. In
addition, the defendant must prove that the governments selection of
him for prosecution was invidious or in bad faith and was based on
impermissible considerations such as . . . the desire to prevent the
exercise of constitutional rights.
United States v. Furman , 31 F.3d 1034, 1037 (10th Cir. 1994) (quotations
omitted) (alteration in original).

Although Mr. Poole alleged that both he and

Defendants argue that Mr. Poole failed to preserve his selective prosecution
claim, a claim based on equal protection under the Fourteenth Amendment,
because he contended at oral argument during the district court hearing that he
was proceeding solely on a First Amendment basis and because his list of issues
raised on appeal does not reference equal protection. We disagree that Mr. Poole
(continued...)

-5-

Sullivan had been speeding through Alamogordo before he left the city limits and
went into the desert, it is clear from the complaint that his conduct in town did
not form the sole, or even primary, basis for his prosecution. Mr. Poole alleged
that he and Sullivan split up and he continued into the desert, where he was
pursued at length by defendant s Lee and Skipworth and other Otero County
officers. See Aplt. App. at 137-38. Although Mr. Poole alleges Sullivan
admitted to a police officer that he had raced through Alamogordo,

see id. at 141,

there is no allegation that Sullivan continued out into the desert or attempted to
evade law enforcement officers . Therefore, Mr. Pooles allegations, even when
taken as true for Rule 12(b)(6) purposes, do not demonstrate that he and Sullivan
were similarly situated.

We affirm the district courts dismissal of Mr. Pooles

selective prosecution claim.

(...continued)
failed to preserve this issue. Where, as here, a selective prosecution claim is
based on allegations of retaliation for the threatened exercise of the right of
access to the courts, it is a claim closely intertwined with First Amendment
interests. Gehl Group v. Koby , 63 F.3d 1528, 1538 (10th Cir. 1995) (quoting
Police Dept of the City of Chicago v. Mosley , 408 U.S. 92, 94-95 (1972)). We
conclude that the factual and legal basis of Mr. Pooles selective prosecution
claim was clear from both his complaint and oral argument during the hearing and
therefore preserved for appellate review.
3

While it is alleged that Mr. Poole did receive a careless driving ticket from
the Alamogordo police and Sullivan did not, Mr. Poole did not sue the
Alamogordo Police Department. Further, that charge was dropped and therefore
cannot form the basis of his selective prosecution claim.

-6-

We understand Mr. Pooles remaining claim to be one for retaliatory and

vindictive prosecution in violation of his First Amendment right of access to the
courts. 5 He has alleged that

defendant s Lee and Skipworth caused criminal

charges to be brought against him in retaliation for the anticipated exercise of his
First Amendment right to bring a civil rights lawsuit against them. During the
hearing on defendants motion to dismiss, the district judge questioned
Mr. Pooles counsel on two points, whether 1) the letters from counsel to

defendant s Lee and Otero County requesting that they preserve evidence were
sufficient to trigger Mr. Pooles First Amendment right of access to the courts,
and 2) Mr. Poole could show that the decision to prosecute him on the six

A claim for vindictive prosecution ordinarily arises when, during the course
of criminal proceedings, a defendant exercises constitutional or statutory rights
and the government seeks to punish him therefor by instituting additional or more
severe charges, see, e.g., United States v. Wall , 37 F.3d 1443, 1448 (10th Cir.
1994). In this context, such a claim is governed by a two-part test,
see United
States v. Lampley , 127 F.3d 1231, 1245 (10th Cir. 1997). Nonetheless, we
recognize that this court has not limited the term to the criminal prosecution
setting, but has characterized First Amendment claims similar to Mr. Pooles as
vindictive prosecution.
See Wolford v. Lasater , 78 F.3d 484, 488 (10th Cir.
1996) (comparing a First Amendment claim to a vindictive prosecution action);
Gehl Group , 63 F.3d at 1534 (stating that a First Amendment claim alleging
retaliatory prosecution is essentially one of vindictive prosecution);
United
States v. P.H.E., Inc. , 965 F.2d 848, 853 (10th Cir. 1992) (discussing vindictive
prosecution claim in terms of prosecution motivated by the improper purpose of
interfering with the defendant s constitutionally protected speech);
cf. Phelps v.
Hamilton , 59 F.3d 1058, 1065 n.12 (10th Cir. 1995) (stating that prosecution
brought for the purpose of hindering an exercise of constitutional rights may
constitute harassing and/or bad faith prosecution).
5

-7-

criminal charges actually hindered his access to the courts.

See Aplt. App.

at 176-83. In his oral ruling, the judge concluded that Mr. Poole had failed to
state a First Amendment claim in this context because he had not alleged facts
that, if proven, would demonstrate actual injury.

See id. at 197.

Mr. Poole asserts that facing criminal charges was injury caused by the
alleged retaliatory prosecution and also contends that defending himself against
the charges undoubtedly ma[d]e it more difficult for [him] to pursue and prevail
on his civil claim. Appellants Br. at 14. He argues that in cases where
retaliation is alleged, as here, the actual injury results from the retaliation.

Id.

at 15. 6 We agree with Mr. Poole that, in the retaliatory context, he has alleged
injury sufficient to withstand a motion to dismiss.
Retaliation, though it is not expressly referred to in the Constitution, is
nonetheless actionable because retaliatory actions may tend to chill individuals
exercise of constitutional rights.

Dawes v. Walker , 239 F.3d 489, 491 (2d Cir.

2001) (quotations omitted). We recognize that a trivial or de minimis injury will

not support a retaliatory prosecution claim.

See id. at 493; Bloch v. Ribar ,

156 F.3d 673, 679 (6th Cir. 1998). This court has suggested that the alleged
injury should be one that would chill a person of ordinary firmness from
The Third Circuit has held that the retaliation itself, so long as it is not
speculative or simply subjective, may be a sufficient allegation of specific
present harm. See Anderson v. Davila , 125 F.3d 148, 160 (3d Cir. 1997).

-8-

continuing to engage in that activity.

Worrell v. Henry , 219 F.3d 1197, 1213

(10th Cir. 2000) (quotation omitted). Therefore, the injury need not actually have
deterred Mr. Poole from filing this lawsuit.

Cf. Gomez v. Vernon , 255 F.3d 1118,

1127 (9th Cir. 2001) ([A] retaliation claim may assert an injury no more tangible
than a chilling effect of First Amendment rights.);

Bloch , 156 F.3d at 679

(noting that injuries such as emotional distress are compensable under 1983).
Taking the factual allegations in Mr. Pooles complaint as true, we conclude that
facing criminal charges that were brought in order to hinder or prevent him from
filing a civil lawsuit against

defendant s is injury sufficient to chill a person of

ordinary firmness. Therefore, we remand this case to the district court for further
proceedings on this claim.
The district court relied on
1996) (per curiam), and

Penrod v. Zavaras , 94 F.3d 1399 (10th Cir.

Miracle ex rel. Miracle v. Spooner

, 978 F. Supp. 1161

(N.D. Ga. 1997), to conclude that Mr. Poole must allege an actual injury resulting
from the alleged retaliation. These cases do not compel the dismissal of
Mr. Pooles First Amendment claim. In

Penrod , this court stated that the actual

injury the prisoner plaintiff had to show was that the challenged official
action--restrictions of his library privileges-- hindered his efforts to pursue a
non-frivolous legal claim, and that theoretical injuries would not suffice. 94 F.3d
at 1403. We rejected the

plaintiff s allegations of injury because they had no

-9-

causal connection to his claim that restrictions of his library privileges affected
his access to the courts.

See id. Here, in contrast, Mr. Poole alleges that

defendants retaliated against him for his anticipated exercise of First Amendment
rights. See Wolford , 78 F.3d at 488 (Generally speaking, government action
which chills constitutionally protected speech or expression contravenes the First
Amendment.). Further,

Penrod deals with access to courts in the prison setting,

a context in which courts have traditionally required a greater showing of injury.

See Dawes , 239 F.3d at 491. As the Second Circuit has noted, the objective
inquiry into the level of injury required is not static across contexts, but rather
must be tailored to the different circumstances in which retaliation claims arise.
Prisoners may be required to tolerate more than public employees, who may be
required to tolerate more than average citizens, before a[ retaliatory] action taken
against them is considered adverse.

Id. at 493 (quotations omitted) (alteration in

original). In Miracle , the district court concluded that an alleged conspiracy

resulting in a discovery delay did not state a claim for violation of the

plaintiff s

right of access to courts. 978 F. Supp. at 1171. Here, the injury asserted is
greater than a mere delay in discovery.
Defendants contend that facing criminal charges is not injury because
Mr. Pooles conduct warranted the charges. However, this court has stated that
[a]n act taken in retaliation for the exercise of a constitutionally protected right
-10-

is actionable under 1983 even if the act, when taken for a different reason,
would have been proper.

DeLoach v. Bevers , 922 F.2d 618, 620 (10th Cir. 1990)

(quotation omitted). The propriety of charging Mr. Poole in light of his conduct
during the pursuit is not relevant to his First Amendment claim. We also reject
defendants argument that there can be no reasonable inference of retaliatory
intent from Mr. Pooles allegations because he had not been charged for any
criminal conduct outside of Alamogordo at the time that his counsel intimated the
filing of a lawsuit. Mr. Poole does not rely solely on the withdrawal of the traffic
ticket as evidence of retaliatory intent, but also on the timing of the charges one
month after the incident but only shortly after his attorney contacted

defendant s

Lee and Otero County to request preservation of the evidence. Timing can be
circumstantial evidence of retaliatory intent.

See Sorannos Gasco, Inc. v.

Morgan , 874 F.2d 1310, 1316 (9th Cir. 1989).

The fact that Mr Poole had not yet filed his civil lawsuit at the time of the
alleged retaliation provides no basis to dismiss his First Amendment claim. The
right of access to courts applies to activities leading up to the formal filing of
a complaint. See Anderson , 125 F.3d at 162 (holding right of access implicated
by retaliatory surveillance in response to administrative complaint and written
notice of intent to file a claim). Additionally, First Amendment rights of
association and free speech extend to the right to retain and consult with an
-11-

attorney. DeLoach , 922 F.2d at 620. We conclude that Mr. Poole has alleged
facts which indicate that the individual defendants were aware he was seriously
considering filing a civil lawsuit against

them and has made further allegations

which, taken as true, demonstrate retaliation for the contemplated exercise of his
First Amendment rights.
Finally, defendants argue that because the letter from Mr. Pooles counsel
did not reference a potential suit, it was a neutral activity and therefore
insufficient to alert defendant s to the possibility of civil suit. Appellees Br.
at 12. This argument fails to recognize the standards applicable to review of
a complaint on a Rule 12(b)(6) motion which require that we accept all
well-pleaded facts as true and resolve all reasonable inferences in Mr. Pooles
favor. Additionally, proof of an officials retaliatory intent rarely will be
supported by direct evidence of such intent.

Bloch , 156 F.3d at 682. We

conclude that Mr Poole has clearly alleged retaliatory motive and has alleged
facts which could support a retaliatory prosecution claim.
Because the district court dismissed Mr. Pooles First Amendment claim
under Rule 12(b)(6), it did not consider

the individual defendants qualified

immunity defense, and, therefore, neither do we. Similarly, although the parties
include extensive argument in their appellate briefs about Mr. Pooles state-based
tort claims, the district court did not address these claims, but simply declined to
-12-

exercise pendent jurisdiction because it concluded there was no cognizable

federal claim. On remand, the district court will need to consider these matters
along with Mr. Pooles motion for leave to amend his original complaint.

The judgment of the United States District Court for the District of
New Mexico is REVERSED, and this case is REMANDED for further
proceedings consistent with this order.

We also decline to address defendants contention that this lawsuit is

frivolous and therefore does not invoke constitutional protection.
See Appellees
Br. at 17. We have clearly indicated our conclusion that Mr. Poole has stated a
First Amendment claim for retaliatory prosecution.

-13-